Delhi High Court
Uday Kaushish & Anr. vs Sanjay Kaushish on 1 January, 1999
Equivalent citations: 77(1999)DLT509, 1999(48)DRJ526, (1999)121PLR78
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT K. Ramamoorthy, J.
1. Mr. D.C. Kaushish, Defendant 1, Mr. Uday Kaushish and Ajay Kaushish Defendant 2 and 3 and Mrs. Shiela Kaushish defendant No. 4 in the suit No. 1176/86 have filed appeal Nos. 25/92, 221/91, and 222/91 respectively against the order passed in IA Nos. 3888/86 and 5000/86 under Order 7, Rule 11, CPC for rejection of the plaint.
2. The Respondent in the Appeal Mr. Sanjay Kaushish filed the suit for partition (Suit No. 1176/86) and in the plaint he has claimed relief referring to various proceedings earlier passed during his minority and has sought the reliefs treating them as not being binding on him. The learned Single Judge of this Court who has dealt with the Interlocutory Applications had considered the matter at length and has come to the conclusion that no case had been made out by the defendants for the rejection of the plaint under Order VII, Rule 11, CPC.
3. The learned Single Judge had come to the conclusion for the purpose of considering the Application under Order VII and Rule 11, CPC that the case of the plaintiff clearly is that a fraud has been practised in obtaining the decree showing the partition of the properties. As the said decree had been obtained when he was a minor and he came to know about the decree only in 1984 and that in fact, no partition of the properties ever took place actually. On the basis of the averments as have been made in the plaint, the question is whether it can be said that the suit for partition is not maintainable because the decree has been already obtained in that respect. The question deserves to be answered in negative. Nothing is shown or brought to our notice that the view taken by the learned Single Judge is erroneous. The order of the learned Single Judge is reported in Sanjay Kaushish Vs. D.C. Kaushish and Ors., .
4. The learned Single Judge has referred to all the authorities cited before him and came to the conclusion which has already been referred to and we concur with view taken by the learned Single Judge. The learned Single Judge has considered the matter in great detail and has correctly applied the principle of law as noticed in Babha Investment Pvt. Ltd. Vs. Harmishan Das Lukxmi Dass, : Let it be noted that when called upon to exercise jurisdiction to reject a plaint under Order 7, Rule 11, CPC the Court will take into consideration the plaint and the plaint alone. Documents admitted or undisputed and the documents so filed with the plaint as to form part thereof may also be looked into. The Court cannot and shall not consider the defense, the pleas taken in the writ ten statement and/or the evidence available on record for the purpose of rejecting the plaint. A jurisdiction to dismiss the suit has to be distinguished from a jurisdiction to reject the plaint. As on this day the Court is neither called upon to, nor can, exercise a jurisdiction to dismiss the suit midway the trial.
5. In view thereof we do not find it necessary to again discuss the facts and law on the point. The issues have to be dealt with at the time of trial of the case and the observations made in the order impugned and here are only tentative for the purpose of the application and under Order 7, Rule 11, CPC.
6. We do not find any infirmity in law in the order passed by the learned Single Judge. Accordingly, we have no hesitation in dismissing the appeals. There shall be no order as to costs.